On 66A, "Palghar was not an abuse of power. The law itself is abusive"; Notes from the Supreme Court

One compelling feature of the ongoing cases against sections of the IT Act is that the court is examining infirmity in the law, and not individual cases of infirmity in its implementation. Yesterday, when Justice Bobde pointed this out to Gopal Sankaranarayan, saying that “Nobody is defending the abuse of the law”, Sankaranarayan, representing the petitioner Anoop K, said that: “There was no abuse of power. Palghar (case) was not an abuse of power, the law itself is abusive. Can the police officer wriggle out of doing what the law requires him to do? The law is abusive.”

Justice Bobde pointed out, on Section 69, that the converse is that one would allow grossly offensive content to be permitted on the Internet. Sankarnarayan responded, saying that by merely copypasting, the government is not satisfying the grounds of Article 19(2) of the Constitution, which provide for restrictions on free speech to be reasonable. “What you do by blocking is prohibition, not restriction. Even prohibition has to be reasonable to a nation. Which part of it is reasonable?”

Readers should keep in mind that the court hasn’t finished hearing the arguments, and the comments made don’t necessarily have any bearing on the final judgment.

Earlier in the day, the bench, comprising of Justice Chelameswar and Bobde, court questioned Sankaranarayan on whether the Internet as a medium necessitates a different law. This has come up frequently in past two days, as has the argument, from the petitioners, whether there is any need for the Section 66A since the offenses are already covered under the IPC.

On 66A, the IPC and the Internet as a medium

“Was 66A necessary at all? If you look at the IPC, these provisions don’t look at a medium for which provisions are made. For 184 years, the IT Act was not needed. An action which takes place outside of these grounds (IT) is not covered by the IT Act, but the IPC. 66A is a discordant drop in that ocean by which we regulate peoples actions. 66A is about the medium, not the message,” Sankaranarayan said. He pointed out that the restrictions put on actions of an individual (and the police) in case of an article published in a newspaper are not there with Section 66A. “When the same piece of that annoying information is published online, it comes under the umbrella of the IT Act. It goes from reasonable to completely unreasonable. The medium cannot be the test of the message.”

Justice Bobde pointed out that the capacity to cause damage is different in case of the Internet is greater, but “You’re saying that the remedy should be about relief from the act, however it is done. Existing law is defined.” To this Justice Chelameswar asked the petitioner: “The question is, when you write a piece in a newspaper, it may be offensive but there is an editorial filter then. This safeguard is not present online. Would that not be a factor? If a pamphlet is provided and circulated, the name of the printer and publisher is known. To say that the law is not about the medium is too sweeping a statement.”…”Someone owns responsibility. All depends on the requirement of the situation.” Justice Bobde added:” Your point is that that something as fundamental as speech ought not to depend on the medium. You can’t have less freedom online, with a freedom as fundamental as speech.”

Sankarnarayan agreed, saying that that this is the point he was making, and especially with respect to defamation, and criminal defamation, and that 66A is not traceable to 19(2), which places restrictions and for those restrictions to be reasonable. Earlier in the day, he explained the circumstances under which, when restrictions were put on Article 19, they were meant to be reasonable. He illustrated situations of what would happen if the IT Act was applicable to not-IT situations. As one of three examples illustrated, Sankarnarayan pointed out that if A sends a message to his sweetheart B and her father C reads the message and is offended by it, he can complain, and send A to jail under the IT Act. Sankarnarayan reiterated that these are civil issues here, and the law is at its most unreasonable limit, because it has been made a crime.

To this, Justice Bobde said that the act depends on the sensitivity of the other person, and a compliment that is a civil norm might offend, however, added that merely because the ingredients of another law are covered is not grounds enough. “Parliament can duplicate laws. Your medium contention is formidable, I must say. The only instance I can remember is the Arms Act, made necessary because of the proliferation of guns. What this law (IT Act) needed because of the proliferation of computers?”, he asked Sankarnarayan. Sankarnarayan responded, saying that the law doesn’t meet the test of reasonableness, and is subjective and undefined. “It depends on 1 billion sensitivities. It doesn’t provide safeguards and exceptions. I doesn’t even provide a safe procedure. It doesn’t meet the test of reasonableness.”

On Section 69 (Blocking)

On Section 69, which allows blocking, Sankarnarayan said that there is no communication, no consultation and no information of the offence to the accused. “It allows for blocking and doesn’t allow for a time limit.” He also added that the grounds for blocking should have been defined in the law, not the IT Rules, and the action is based on the subjective satisfaction of the designated authority.” He reiterated that the grounds for blocking have to be in the statute and not the ruled. To this, Justice Chelameswar said that the safeguard needs to have notice, and due process of the law has to be followed. Just Bobde asked whether the existence of the rules cannot validate the section itself.

Examining whether the medium makes a difference, Justice Bobde said “Surely you can’t say that writing an article isn’t the same as being able to send thousands of mails to create propaganda. Does the medium make a different? Take pornography: the difference between someone drawing and publishing something, and someone publishing it on the net, is huge.”

Sankarnarayan responded by saying that “In case of the floods in Kashmir, if we didn’t have the web, the contributions would not have been as much. Pornography is an issue, but they host it outside. Even in the US, some states don’t allow gambling, so they host it in states that allow it. There are jurisdiction issues. In 2012, CIS conducted a detailed study, on the 4 days of blocking in August 2012. A large majority of domains are from Facebook. The content here is to be isolated and blocked. If you have objectionable content and if it is anonymous, it will fall foul of the law. In a situation when it isn’t, do we have any safeguards for innocent authors in this law, which is necessary? The law fails.

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Justice Bobde also pointed out that (given the nature of the Internet), procedural safeguards have to be determined by the executive. The technology changes so fast that safeguards might change. To this, Sankarnarayan responded by saying that that did not apply in case of 66A, saying that 19(2) enjoins the lawmaking authority to make the grounds for restrictions reasonable. “Would 69(A) pass the test of 19(2)? With this section, they satisfy one part of 19(2), but the reasonable part is not satisfied. The Section came into effect, and if the government hadn’t framed rules for 2 years, would the section have stood the test of 19(2)?
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Justice Chelameswar pointed out that natural justice has 2 phases – post and pre. Some cases can have a devastating impact, so a pre-hearing would defeat the purpose.

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Sankarnarayan also pointed towards John Doe orders: “If I have a movie coming out. Someone is going to pirate my content. They have gotten more than 50 orders for blocking. When you access these webpages, the page doesn’t open. A notice says that DoT or Court have ordered the blocking, but not specifying which. There is a poverty of specificity, even if reasonable parameters are laid down.” He also pointed towards the mass blocking of websites a few years ago (Ed: he said it was 2007, but it was actually July 2006), where a blocking order led to entire blog domains (blogger, typepad etc) being blocked, instead of specific posts.

8. Dilip Kumar Tulsidas v Union of India W.P. (C) 97/2013
Has sought a direction to the government to frame an appropriate regulatory framework of Rules, regulations and guidelines for effective investigation of cyber crimes.